Intellectual Property Rights from Publicly Financed Research and
R 385
Patents Act, 1978 (Act No. 57 of 1978)Chapter XI : Infringement68. Relief for infringement of partially valid specification |
Where in any proceedings for infringement of a patent, the commissioner finds that any claim in the complete specification in respect of which infringement is alleged, is valid, but that any other claim therein is invalid, the following provisions shall, notwithstanding anything contained in section 66(5), apply, namely—
| (a) | If a counterclaim for the revocation of the patent has been made in the proceedings on the ground of the invalidity of any claim in the specification, the commissioner may postpone the operation of any order issued thereon for such time as may be required to enable the patentee to effect any amendment of the specification pursuant to the conditions imposed by the commissioner, who may attach such other condition to any order to be issued on the counterclaim as he may deem fit; and |
| (b) | when the specification has been amended in terms of paragraph (a), the commissioner may, subject to such order as to costs as he may issue and as to the date from which damages shall be calculated, grant relief in respect of any claim which had, before the amendment, been found to be valid and infringed, and in exercising his discretion he may take into consideration the conduct of the patentee in inserting in the specification those claims which had been found, before amendment, to be invalid or permitting such claims to remain there. |
